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Keith v. Gidley

United States District Court, E.D. Michigan, Southern Division

April 13, 2018

JOHN KEITH, PETITIONER,
v.
LORI GIDLEY, RESPONDENT.

          Anthony P. Patti Judge

          OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS [*]

          LAURIE J. MICHELSON U.S. DISTRICT JUDGE

         John Keith dated Devvon Almond. Early one morning, Almond woke to find Keith sexually assaulting her seven-year-old daughter. Keith eventually pled guilty to one count of second-degree criminal sexual conduct. This offense does not require the state to prove, beyond a reasonable doubt, an act of sexual penetration. Yet at Keith's sentencing, the trial judge found, by a preponderance of the evidence, that Keith committed an act of sexual penetration. So the trial judge enhanced Keith's sentence. And as Keith was also eligible for an enhancement as a habitual offender, Keith received 90 months to 22 ½ years in prison.

         Keith appealed. He advanced a single claim: because a preponderance of the evidence did not establish an act of sexual penetration, the trial judge abused its discretion in enhancing Keith's sentence. Keith lost.

         Then he filed this petition for a writ of habeas corpus. Now he argues both sentence enhancements violate federal law. As Keith cannot establish any constitutional violations, the Court will deny his petition.

         I.

         On December 28, John Keith visited his girlfriend, Devvon Almond. (R. 8, PID 92.) Keith spent the evening with Almond and her two daughters. (Id. at 93.) As bedtime drew near, the girls wanted to catch Santa Claus, so Keith helped the girls bring their beds into the home's front room. (Id. at 95-96.) Once the girls settled down to sleep, Keith retired to Almond's bedroom. (Id. at 96.)

         Around 3:00am, Almond woke to find Keith gone. (Id. at 97.) As Keith routinely left early, Almond was unsurprised. (Id.) She got up to lock the front door (because Keith did not yet have a key) and on her way, saw Keith in the front room. (Id. at 98-99.)

         Wearing only his boxer shorts, Keith was on his knees, stooped behind Almond's seven-year-old daughter. (Id.) Almond's daughter's pajamas were pulled down. (Id.) As Almond's daughter lay in the fetal position, Almond watched Keith thrust his penis in a “back and forth motion” against her daughter's backside. (Id. at 101.)

         Almond screamed. (Id. at 102.) Keith got up and said he did it as payback because Almond filed a sexual assault complaint against Keith's son (after Keith's son allegedly assaulted Almond's other daughter). (Id. at 104.) Keith gathered his clothes and left; Almond called the police. (Id. at 105.)

         When the police arrived, they initially spoke with Almond. (Id. at 111.) She told them what she witnessed and the police accompanied Almond's daughter to a CARE House facility where they interviewed her about the incident. (Id.) Almond's daughter offered a graphic description of the assault and a medical exam noted redness around her vagina and tearing to her rectum. See People v. Keith, No. 315169, 2014 Mich.App. LEXIS 1063, at *3 (Mich. Ct. App. June 10, 2014).

         The state charged Keith with second-degree criminal sexual conduct. Understanding the charging decision in this case is key to understanding Keith's habeas corpus claims. First-degree criminal sexual conduct requires the state prove an act of sexual penetration with a person “under 13 years of age.” Mich. Comp. Laws §750.520b(1)(a). The offense is punishable by any term of years up to life. Mich. Comp. Laws § 750.520b(2)(a). Second-degree criminal sexual conduct requires the state prove “sexual contact” with a person “under 13 years of age.” Mich. Comp. Laws § 750.520c(1)(a). The offense is punishable by at most 15 years in prison. Mich. Comp. Laws § 750.520c(2)(a).

         Keith pled guilty to second degree criminal sexual conduct. (Id. at 125.) He admitted to engaging in “sexual contact” with a person under 13. (Id. at 127.) But the plea did not come with any sentencing agreement. (Id. at 125.)

         In between his plea and his sentencing, two important things occurred. First, police officers gave Keith a polygraph. (Id. at 133.) And during the polygraph, Keith admitted to an act of sexual penetration with Almond's daughter. (Id.) Thus, officers amended ...


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